Judge Brandon was elected probate judge in 1928 and was re-elected November 6, 1934, and the result of his election on said November 6, 1934, had been duly and legally declared. Brandon died December 6, 1934, before filing a bond and taking the oath of office, but he was making arrangements with a surety company for such bond which would have been given and filed December 18, 1934. On December 14, 1934, Gov. Miller, after receiving proof of the death of Judge Brandon, appointed the respondent, Fleetwood Rice, to said office.
That there was a vacancy in the office is beyond question, but as to which term the vacancy may be ascribed is of considerable importance in the settlement of the controversy here involved. Section 155 of the Constitution of 1901 fixes the term of judges of probate at six years, and section 158 deals with vacancies and the filling of same. So, the important question here is the determination of the beginning and ending of the term, and we think this question was definitely settled in the case of Prowell v. State ex rel. Hasty et al., 142 Ala. 80,39 So. 164, 167. In this case it was held that the Prowell term, under and by virtue of the Constitution of 1901, was preserved and fixed and ended at the November election, 1904, at which Hasty was elected, making allowance, under the hold-over clause, of a few days between the election in 1904, for the ascertainment of the result and the qualification of Hasty. In other words, we held that "the Constitution and laws in existence at the time of appellant's election in 1898 fixed the termination of his term, and the commencement of that of his successor, at November, 1904. The Constitution of 1901 fixes the same term, and specifically provides for the same to terminate at the same time, which time in the previous Constitution and laws had been fixed as the first Tuesday after the first Monday in November." The effect of this holding was that Prowell's term ended and Hasty's began in November, 1904. This being the case, the holding over of Brandon after his election in November, 1934, was not an extension of the 1928 term which could not change or encroach upon the 1934 term, but was an exercise of the tenure under the hold-over clause in section 155 of the Constitution and his death created a vacancy, not in the 1928 term which had expired, but in the 1934 term which had commenced prior to his death. Maddox v. York, 21 Tex. Civ. App. 622, 54 S.W. 24 (affirmed 93 Tex. 275,55 S.W. 1133); Olmstead v. Augustus, 112 Ky. 365,65 S.W. 817. The provision in a Constitution or statute, when the term is fixed, for holding over until a successor is elected or appointed and qualifies, does not affect the cycle of the term fixed by law which ends at the expiration of the term. State ex rel. Hodges v. Amos, 101 Fla. 114, 133 So. 623. "The term of an office, as fixed in the Constitution or statute creating the office, is not to be confused with the tenure of an officer, and is not affected by the holding over of an incumbent beyond the expiration of the term for which he was appointed." State v. Young, 137 La. 102, 68 So. 241. To like effect is the holding of our own court. Prowell v. State ex rel. Hasty, supra; City Council of Montgomery v. Hughes, 65 Ala. 201; State ex rel. Covington v. Thompson, 142 Ala. 98, 38 So. 679.
We have not overlooked the citation, 46 C. J. 972, especially so much of the text as says: "But a vacancy in an office is not deemed to occur as a result of the death *Page 611 of one elected to office before the beginning of the new term where deceased has not qualified and where the term of the incumbent is until a successor has qualified." This may be sound where there is no fixed term and the holding is to terminate upon the qualification of a successor, but here we have an officer duly elected and who dies after the commencement of the term for which he was elected, although he did not actually qualify before his death, though he had the right to do so.
As to section 2567 of the Code of 1923 fixing the term of officers therein named, there is no attempt to fix the term except "when not otherwise provided for by law." Here, the term of probate judges was provided for by the Constitution.
Section 9569 of the Code of 1923, first appearing in the Code of 1907 as section 5410, and in place of section 3354 of the Code of 1896, fixes the term of office of the judge of probate for "six years from the first Monday after the second Tuesday in January next after his election, and until his successor is elected and qualified." This was an unwarranted change of the term as fixed by the Constitution as it not only increased the existing term but materially changed the beginning and end of same. "Where the term of the officer is fixed by the constitution, the legislature can neither extend nor abridge it." Mechem on Public Officers and Offices, page 254, § 387, and cases cited in note 5.
Schedule No. 3 of the Constitution of 1901 as effectively fixes the commencement and end of the term of probate judges in November as does section 116 fix the commencement of the term of the Governor, and other officers therein named, as beginning on Monday after the second Tuesday in January. Suppose the Legislature should say the term of the Governor should begin in November or March, this court would not hesitate to declare such action violative of the Constitution, and if the Constitution fixed the term of probate judges as beginning in November, the Legislature would have no right to change the same to the first Monday after the second Tuesday in January. Clark v. State ex rel. Graves, 177 Ala. 188, 59 So. 259.
It may be conceded that many of the probate judges have acquiesced in and qualified in January as provided by section 9569, but custom, or even statutes, cannot override the plain and unambiguous mandate of our organic law.
Regardless of the many assignments of error, the respondent, under the undisputed facts, was rightfully holding the office under the first appointment of the Governor, and, as there was no vacancy when the second appointment was made, it was, of course, abortive. We hold that as the respondent, Rice's, appointment was for the present, or new term, he is entitled to hold same until the next general election occurring at least six months after his appointment and at which time a successor will be elected for the remainder of the Brandon 1934 term. This is, of course, quite a different case from McDonnell v. State, ex rel. Jones, 199 Ala. 240, 74 So. 349.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, BROWN, FOSTER, and KNIGHT, JJ., concur in the result, but for reasons set out in the opinion which follows.
THOMAS, J., dissents.
The majority of the court, consisting of Justices GARDNER, BOULDIN, BROWN, FOSTER, and KNIGHT, give expression to their views in the following opinion: